Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013984-001

15/09/2017

The Complainant commenced employment with the Respondent in September 2011. She was initially employed as a Field Sales Representative, promoted to a Field Sales Executive and then to Senior Sales Executive.

In October 2016, whilst at work, she was involved in a serious road traffic accident sustaining serious injuries to her back, neck and lacerations to her arm. There then followed a period of absence from work.

During her absence the Complainant received constant telephone calls from her manager and felt that she had to maintain contact with her clients despite the fact that she felt quite unwell.

Due to events taking place during her period of absence the Complainant claims that she had no option but to resign from her position, she sent an email dated 14/03/2017 to the Respondent outlining her reasons for leaving the company. No response was received.

·         The Complainant was involved in a serious car accident whilst driving for work, she sustained serious injuries in respect of which she is still receiving treatment. The complainant was unable to return to work and submitted sick certificates from her GP as requested by the Respondent.

·         The Complainant initially thought she would be able to return to work within a short time, however she was in a great deal of pain and was unable to drive due to anxiety during that time. The Complainant’s manager asked that she work from home. The Complainant received almost daily telephone calls from her manager during this time to check on her progress as she was trying to continue to work from home.

·         On 01/11/2016 the Complainant received an email from her manager setting out her targets for the month – some 4 days after the accident. The Complainant received medical advice to the effect that continuing to work whilst still recuperating was not advisable. The complainant notified her manager of this advice and he left a voice message asking her to contact him first thing on Monday morning. The complainant was to upset and anxious to do so.

·         On 08/11/2016 the Complainant received a further email stating “Day 5 makes for very disappointing reading……..”

·         On 19/11/2016 the Complainant received an email from her manager requesting that she send in medical certificates as promised. Attached to that email was a series of emails between the Respondent manager and the UK based HR Adviser, these emails were dated 15/11/2016 and 18/11/2016. The content of these emails indicated quite clearly that that the Complainant would be invited to attend a disciplinary meeting due to her absence from work, but also, that there was an underlying performance issue for which she may or may not receive formal disciplinary action. The HR Department of the Respondent did not appear to have been informed that the Complainant was on sick leave.

·         The Complainant was extremely distressed to receive emails, and it was unclear as to whether the Manager intended to forward same to the Complainant. The subject matter of the emails was “Complainant (name inserted) – meeting” which immediately indicated some form of disciplinary meeting to the Complainant.

·         Previously the Complainant had been placed on a performance improvement plan however this was closed off as the Complainant’s performance had improved.

·         On 12/01/2017 the Complainant received an email for her manager referencing an email from the UK based payroll administrator indicating that the Complainant’s sick pay was due to expire on 14/02/2017. The Complainant’s contract of employment states that sick pay for over five years of service is paid for 26 weeks at full rate and a further 26 weeks at half pay. The Complainant then received a further email for the payroll administrator stating that sickness policy had changed four years previously. The Complainant had not received notification of this change.

·         The Complainant believed that she had no option but to resign and she handed in her notice.

Conclusion.

·         The Complainant’s case is for constructive dismissal.

·         There was an absolute breakdown in the relationship of trust and confidence between the Complainant and her employer – exemplified by the manner

·         in which her resignation was dealt with.

·         In the circumstances and in the absence of any viable alternative for the Complainant, it is submitted that it was reasonable for the Complainant, who suffered extreme stress as a result of the foregoing incident, to resign and/or because of the conduct of the Respondent, the Complainant was entitled to resign.

·         The Respondent disputes the claim in its totality. In particular, the Respondent contends that the cessation of employment does not meet the burden of proof to substantiate a claim for constructive dismissal.

·         On 15/11/2016 the Respondent HR Advisor contacted the Complainant’s manager for an update in relation to the Complainant’s performance improvement plan and sought clarification from the manager if the Complainant needed to be invited to a disciplinary hearing, or if no formal action was to be taken in relation to her performance. At this point the hr Advisor was not aware of the Complainant’s absence from work or the fact that she had been involved in a road traffic accident whilst at work.

·         The Complainant’s manager advised that the Complainant was absent and would be absent until the end of November. He added that this period of absence would hit a trigger level for an absence review meeting.

·         The HR Adviser was not aware of the Complainant’s absence, she then requested the Complainant’s manager to forward on to her all medical certificates submitted by the Complainant and went onto suggest that the manager should update the payroll self service employee system as there was no record of the Complainant being absent due to illness.

·         The Complainant’s manager then contacted the Complainant to request medical certificates that she had stated that she would furnish. In contacting the Complainant the Respondent manager inadvertently forwarded the email chain between himself and the HR Advisor, these included a performance improvement plan and a potential disciplinary hearing.

·         The Complainant responded to her manager and copied both the HR Adviser and the Regional Sales Manager on 24/11/2016 to update them on her current medical status and requested the insurance forms which she was required to complete in relation to the accident.

·         At no point during this correspondence did the Complainant raise her concerns in relation to the email chain she had received from her manager or the potential disciplinary process referred to within.

·         On 12/12/2016 the HR Advisor wrote to the Complainant in relation to her recent absence, and to request that she complete and return long term sick forms and an occupational health and consent form. The HR Advisor also advised that upon receipt of the completed forms, the company may be in contact to arrange a face to face absence review meeting, in line with company policy. These forms were completed and returned by the Complainant who continued to submit medical certificates covering 20/12/2016 to 01/02/2017 and again from 01/02/2017 to 31/03/2017.

·         The Complainant’s manager was informed by the Payroll Administrator on 12/01/2017 that the Complainant’s sick pay entitlement was due to expire on 14/02/2017 in line with company policy. This correspondence from the Payroll Administrator was forwarded onto the Complainant by her manager to update her in relation to her in relation to the status of her sick pay and pending expiry date.

·         There followed an exchange of emails between the Complainant and the Payroll Administrator who advised that the sick pay policy had been changed approximately four years ago. The Complainant claimed she had not been notified of such a change. It is the Respondent’s position that the Complainant had been advised of this change to the sick pay policy.

·         The Complainant contacted her manager on 16/02/2017 by email to advise that she was resigning from her position and stated that she would be unable to work out her four-week notice period due to her health. The Complainant requested any outstanding holiday monies and a P45.

·         The resignation email received did not refer to any outstanding grievance in relation to her employment, the potential disciplinary hearing referenced in the email chain or her discontent regarding the expiry of her sick pay entitlements.

·         The Respondent manager responded on 24/02/2017 to confirm receipt of the email resignation and outlined details of outstanding monies and the return of company property.

·         On 15/03/2017, the last day of employment the Complainant emailed the HR Advisor, the Regional Sales Manager and her own manager to state that she left her company car at the Dublin office with other outstanding company property due to be returned. It was in this correspondence that the Complainant first raised her dissatisfaction in relation to her receiving the email chain in November 2016 which referred to disciplinary hearing and also her disappointment that she had not been visited by anyone from the company since the accident.

Respondent’s position.

Reference to s.1 of the Unfair Dismissals Act 1977 (as amended) defines dismissal in relation to an employee.

In light of this definition, and established principles adopted by the Tribunal and the Courts, thereexists a burden of proof on the employee to demonstrate that:

a)       The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

b)      The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the Respondent’s position that neither criterion has been met.

Contractual Test – Ref: Conway v Ulster Bank, UD474/1981.

The Respondent fulfilled its contractual obligations, implied and otherwise, at all times. In light of this, it is the Respondent’s position that the termination of employment fails on a contractual test to be a constructive dismissal.

Reasonableness Test – Ref: McCormack v Dunnes Stores, UD1421/2008.

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”

It is the Respondent’s position that it acted reasonably and fairly at all times in accordance with its policies, best practice and appropriate conduct.

The Respondent has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).

It is the Respondent’s position that in advance of the Claimant furnishing her resignation, she could have notified the Respondent of any concerns she may have had in relation to her employment and utilised internal procedures to resolve any grievance, which she failed to do. The Respondent maintains that the Complainant acted in a hasty and unreasonable manner by resigning from her position before notifying the Respondent of her concerns and in advance of exhausting internal procedures.

As such, the Complainant did not act reasonably in resigning her employment as she had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints”(Conway v Ulster Bank).

Travers v MBNA Ireland Limited, UD720/2006.

“the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” and stated “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. The Tribunal thus found in that case that the claimant was not constructively dismissed.

The Respondent’s primary concern had always been the Claimant’s health and wellbeing and was endeavouring to support the Claimant’s return to work. The Claimant failed to provide the Respondent an opportunity to fully respond to concerns by failing to utilise any of the formal channels to seek to address any issues she may have had.

Conclusion.

In conclusion, it is the Respondent’s position that it in no way repudiated the contract of employment but rather operated the employment relationship at all times within the parameters of the contractual relationship. Furthermore, it is the Respondent’s position that its interactions with the Claimant were at all times reasonable, and that, conversely, the Claimant’s action in failing to utilise and exhaust the internal grievance procedures amounted to unreasonableness on her part. In light of that, it is the Respondent’s position that the Claimant was not dismissed, constructively or otherwise, from her employment.

Extensive written submissions were received from both parties.

Regarding the exchange of emails between the Complainant’s manager and the UK based HR Advisor around the 15th and 18th November it was regrettable that these were sent to the Complainant. I shall note that these emails do not contain any reference to a disciplinary procedure or action as suggested by the Complainant in her complaint form – they do refer to hitting a trigger level and the hearing referred to is under the Sickness Absence Policy.

In the Respondent’s Sickness Absence Policy there are “trigger points” that are described as follows:

“The following should act as a “trigger” for the manager to initiate action, and demonstrate a level of absence considered to be unacceptable by the Respondent company: -

·         3 occasions of absence in a rolling 12-month period.

·         3% absence in a rolling 12-month period (equating to 8 working days in total)

·         Continuous sickness absence for a period of four weeks or more (long term sickness)

I note that this absence policy also states that all Managers should ensure that all sickness absence is properly and promptly recorded in the agreed format and sent through to the Payroll Department. Did this happen in the Complainant’s case?

As a comment, I would suggest that the Respondent should have a careful look at this policy in respect to any legislation quoted to establish if it is suitable for this jurisdiction. There are references to the Data Protection Act 1998, The Access to Medical Reports Act 1988 – neither of these Acts are applicable in Ireland.

There is a further reference to Sick Pay Entitlement – Statutory Sick Pay (SSP) – there is no Statutory Sick Pay entitlement in Ireland.

I am satisfied that there was no intention to invite the Complainant to a disciplinary hearing due to her absence which was the result of injuries sustained in a road traffic accident.

Regarding a claim for Constructive Dismissal I have considered all the points made at the hearing. We all must accept that in any case of Constructive Dismissal there is a high burden of proof placed on the employee.

As pointed out by the Respondent [Constructive] dismissal is defined as follows:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, if it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

To establish a constructive dismissal case the employee must (ideally) be able to show:

·         There was a breach of contract and/or unreasonable conduct by the employer.

·         The employee formally complained to the employer in relation to the said breach and/or conduct.

·         The employer failed adequately or at all to address the grievance.

McCormack v Dunnes Stores, UD1421/2008.

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

There was no evidence presented at the hearing that the Respondent’s Grievance Policy was utilised by the Complainant.

The failure by the Complainant to utilise the Respondent’s Grievance Policy was a fatal mistake and for this reason alone I have no alternative but to decide that the Complaint fails.

Constructive Dismissal: Failure to utilise procedures.